© Hogan & Hartson LLP. All rights reserved.

Single Firm Conduct: EU / US convergences and

divergences

Michel DebrouxNovember 28, 2007

Brussels

© Hogan & Hartson LLP. All rights reserved.

“In the US, the antitrust laws are enforced to protect

consumers by protecting competition, not competitors ..”

“We are concerned that the standard applied to unilateral conduct (…) may have the unfortunate consequence of

harming consumers by chilling innovation and discouraging

competition”

Who said « divergences » ? …

© Hogan & Hartson LLP. All rights reserved.

Convergences• In the EU, antitrust enforcement remains primarily a matter of

State (or EC) authorities, with limited –although increasing – role of (a) criminal penalties and (b) private damage actions.

• But on some major issues, even though enforcement tools, procedures or priorities may differ, there is no divergence on the basic principles :

– Cartel enforcement and tools– Horizontal mergers– Need for international cooperation

© Hogan & Hartson LLP. All rights reserved.

Single Firm Conduct Approach: Divergences ?• Different legal ground:

– EU: « abuse of dominant position » and importance of the achievement of the Single Market

– US: Monopolization or Attempted Monopolization

© Hogan & Hartson LLP. All rights reserved.

Single Firm Conduct Approach: Divergences ?• Stated similar objective: preventing harm to consumer

– But the devil is in the details: how to assess actual or potential harm to consumers?

– Which test?

– Example: should the ability of a dominant firm to recoup losses be taken into account in the predation test?

© Hogan & Hartson LLP. All rights reserved.

Single Firm Conduct Approach: Divergences ?• Innovation and Antitrust

– Is the Microsoft ruling an invitation to “chill innovators”?

– « Bundling » and « fostering innovation »: the ruling’s lessons

© Hogan & Hartson LLP. All rights reserved.

BaltimoreBeijingBerlinBoulderBrusselsCaracasColorado SpringsDenverGenevaHong KongLondonLos AngelesMiamiMoscowMunichNew YorkNorthern VirginiaParisShanghaiTokyoWarsawWashington, DC

www.hhlaw.comFor more information on

Hogan & Hartson, please visit us at